R v Zancan - [2009] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 646 of 2008

THE QUEEN
	v
TRAVIS JAMES ZANCAN

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JUDGES:	NETTLE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2009
DATE OF JUDGMENT:	6 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 11

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CRIMINAL LAW – Sentencing – Prohibited person in possession of firearm – Numerous delays over more than five years – Procedural fairness – Whether judge erred in finding appellant’s own intention was to delay hearing as long as possible – Issue of weight to be given to delay as appellant continued offending throughout period of delay – Appeal dismissed – R v Todd (1982) 2 NSWLR 517, 519, R v Nikodjevic [2004] VSCA 222, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Valos Black & Associates

NETTLE JA:

On 31 July 2003, the appellant was charged on summons with one offence of being a prohibited person in possession of a firearm and one of being a prohibited person in possession of a silencer.

The matter was originally listed for hearing in the Magistrates' Court[1] after which it proceeded for the next three years in that court without determination as follows:
[1]The charges of being a prohibited person in possession of a firearm and being a prohibited person in possession of a silencer are indictable offences triable summarily. (See s 53 and schedule 4 of the Magistrates’ Court Act 1989.)

Date Court Location Hearing Type Result

8 September 2003 Broadmeadows
Mention
Adjourned to 6 October 2003.

6 October 2003 Broadmeadows Mention Adjourned to 5 November 2003.

5 November 2003 Broadmeadows Contest Mention Adjourned to 15 April 2004.

15 April 2004 Melbourne Mention Adjourned to 17 September 2004.

17 September 2004 Melbourne Plea hearing Adjourned to 12 November 2004.

12 November 2004 Melbourne Plea hearing Adjourned to 8 December 2004.

8 December 2004 Broadmeadows Contest Mention Appellant failed to appear and a warrant was issued. Adjourned to a date to be fixed.

29 December 2004 Melbourne Contest Mention Application for bail refused. Remanded to 21 February 2005.

21 February 2005 Melbourne Mention Remanded to 22 March 2005.

22 March 2005 Melbourne Mention Remanded to 26 April 2005.

26 April 2005 Melbourne Mention Remanded to 24 May 2005.

24 May 2005 Melbourne Mention Remanded to 10 June 2005.

10 June 2005 Melbourne Mention Remanded to 1 July 2005.

1 July 2005 Melbourne Mention Remanded to 11 August 2005.

11 August 2005 Broadmeadows Mention Remanded to 8 September 2005.

8 September 2005 Broadmeadows Mention Remanded to 26 September 2005.

26 September 2005 Broadmeadows Mention Remanded to 30 November 2005.

30 November 2005 Broadmeadows Contest Mention Remanded to 27 January 2006.

19 December 2005 Melbourne Application for bail Adjourned to 21 December 2005.

21 December 2005 Melbourne Application for bail Application for bail granted with conditions.

27 January 2006 Broadmeadows Contest Mention Remanded to 3 May 2006. Bail…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Zancan

Details

AGLC: R v Zancan [2009] VSCA 11
Case: [2009] VSCA 11
Decision Date: 6 February 2009

CaseChat Overview and Summary

In the case of R v Zancan, the appellant was found in possession of a firearm as a prohibited person, leading to a complex sentencing process involving multiple delays over more than five years. The case was heard in the Supreme Court of Victoria, where the appellant contested the sentence imposed, particularly focusing on the consideration of the delays in the proceedings and their impact on the sentencing outcome. The appellant argued that the trial judge had erred in attributing to him an intention to delay the proceedings as long as possible, and that the weight given to these delays was inappropriate given his continued offending throughout the period of delay.

The primary legal issues before the court were whether the judge had erred in attributing a specific intention to the appellant regarding the delays, and the extent to which these delays should influence the sentencing. The court had to weigh the procedural fairness concerns against the appellant’s ongoing criminal activities and the appropriate punishment for his possession of a firearm. The court examined relevant case law, including R v Todd (1982) 2 NSWLR 517 and R v Nikodjevic [2004] VSCA 222, to determine how such factors should be balanced in sentencing.

The court concluded that the trial judge did not err in attributing the intention to delay the proceedings to the appellant, considering the evidence and the appellant's actions throughout the delay period. The court held that the weight given to the delays was justified, as they were directly linked to the appellant’s ongoing offending. The appeal was dismissed, affirming the original sentence. The court's reasoning focused on the necessity of balancing the rights of the accused with the imperative of delivering just outcomes in criminal sentencing, ultimately upholding the trial judge's decision.

Orders